"This litigation grows out of a new survey recently made by the city surveyor. This officer after searching for the original stakes and finding none, has proceeded to take measurements according to the original plat, and to drive stakes of his own. According to this survey the practical location of the whole plat is wrong, and all the lines should be moved between four and five feet to the east. The surveyor testifies with positiveness and apparently without the least hesitation that ÛÏthe fences and buildings on all the lots are not correctly locatedÛ and there is of course an opportunity for forty-eight suits at law and probably many more than that."
-Diehl v. Zanger, 39 Mich. 601, 604 (1878)
at 605: "No rule in real estate law is more inflexible than that monuments control course and distance,--a rule that we have frequent occasion to apply in the case of public surveys, where its propriety, justice and necessity are never questioned. But its application in other cases is quite as proper, and quite as necessary to the protection of substantial rights."
The practical location of the whole plat is wrong? I can accept that, except that the buildings and other improvements are monuments unto themselves. The only suit I see is against the city surveyor, who should have contained himself within the rights of use of the city, that is, those few lots in conflict with street right of ways.
Did the city surveyor use a wrong right of way as his point of reference. Before I built my home I found a marker that said my lot was 5' short. I researched and found that in my town 90+% of the lots were on a single plat with 50' streets. The few lots on the West side of a cross street were on a separate plat. My side plat dedicated 25' 1/2 ROW. The western Plat dedicated only 15' 1/2 ROW. The surveyor of the lot to my West assumed a 50' ROW and so laid out the lot. I contacted said surveyor with the filed maps information and they resurveyed and relocated the markers. Only 40' ROW in the whole town and it is only a block and one half long.
Paul in PA
Dave Karoly, post: 354376, member: 94 wrote: "This litigation grows out of a new survey recently made by the city surveyor. This officer after searching for the original stakes and finding none, has proceeded to take measurements according to the original plat, and to drive stakes of his own. According to this survey the practical location of the whole plat is wrong, and all the lines should be moved between four and five feet to the east. The surveyor testifies with positiveness and apparently without the least hesitation that ÛÏthe fences and buildings on all the lots are not correctly locatedÛ and there is of course an opportunity for forty-eight suits at law and probably many more than that."
-Diehl v. Zanger, 39 Mich. 601, 604 (1878)
at 605: "No rule in real estate law is more inflexible than that monuments control course and distance,--a rule that we have frequent occasion to apply in the case of public surveys, where its propriety, justice and necessity are never questioned. But its application in other cases is quite as proper, and quite as necessary to the protection of substantial rights."
What ever happened to protect the public? No need to uproot 48 boundaries especially if they were at peace.
"This officer after searching for the original stakes and finding none..."
INMHO there is something "not correctly locatedÛ within that Surveyors cranium.
o.O
Dave Karoly, post: 354376, member: 94 wrote: "This litigation grows out of a new survey recently made by the city surveyor. This officer after searching for the original stakes and finding none, has proceeded to take measurements according to the original plat, and to drive stakes of his own. According to this survey the practical location of the whole plat is wrong, and all the lines should be moved between four and five feet to the east. The surveyor testifies with positiveness and apparently without the least hesitation that ÛÏthe fences and buildings on all the lots are not correctly locatedÛ and there is of course an opportunity for forty-eight suits at law and probably many more than that."
-Diehl v. Zanger, 39 Mich. 601, 604 (1878)
at 605: "No rule in real estate law is more inflexible than that monuments control course and distance,--a rule that we have frequent occasion to apply in the case of public surveys, where its propriety, justice and necessity are never questioned. But its application in other cases is quite as proper, and quite as necessary to the protection of substantial rights."
Justice Cooley is timeless. It is really sad that far too many surveyors are still struggling with the principles he so eloquently expressed so long ago..........
What an idiot.....and to carry it to this point without realizing how stupid he is being is unforgiveable......shouldn't have a license.
Sounds like that surveyor needs to adjust his (probably nonoriginal) point of beginning 4 to 5 feet to the west, and that will adjust the whole subdivision to within 1/2 foot.
Ha! it was probably a section corner that he double-proportioned in due to lack of the original section stone.
Brian Allen, post: 354471, member: 1333 wrote: Justice Cooley is timeless. It is really sad that far too many surveyors are still struggling with the principles he so eloquently expressed so long ago..........
Cooley (writing the concurring opinion here) implies that the Section corners were accepted as unchangeable at that time (1878) but the Surveyors, especially City Engineers, thought everything else was open to correction. He quickly disposes of that notion.
Bullard v. Kempff, 119 Cal. 9 (1897) is a case of house lots in San Francisco, the builder laid out lots and built houses with retaining walls projecting from their northwest corners to the rear and their southwest corners to the street because the ground slopes east to west. The west walls of the houses were the walls on the downhill side. The 27-8 1/4" wide lots are terraced vertically 3' at each retaining wall (the court uses "bulkhead"). A Surveyor years later states the walls are all off 8"; from the statement of facts it appears every house encroaches 8" on its neighbor. The Court batted that away stating the general rule that monuments (presumably the downhill side of the walls) set at the time of the original conveyances control.
Kaiser v. Dalto, 140 Cal. 167 (1903) is another San Fransisco case where the original line acquiesced in for many years was upheld by the Court over measurements run from another block resulting in a 4 or 5" discrepancy. The good news is this case had at least two Surveyors testify for the established line.
Penry v. Richards, 52 Cal. 496 (1877) Is a Santa Barbara case wherein the City Engineer tried to move a street 40'. The Justice said GET OUT OF MY COURTROOM!!! Well that's what I imagine he said in a just world.
Paul in PA, post: 354402, member: 236 wrote: ... except that the buildings and other improvements are monuments unto themselves.
Paul in PA
That was my first thought as well Paul. That surveyor did not look very hard for evidence of the line if he is ignoring such additional evidence of the original line's location.
Dave Karoly, post: 354482, member: 94 wrote: Kaiser v. Dalto, 140 Cal. 167 (1903) is another San Fransisco case where the original line acquiesced in for many years was upheld by the Court over measurements run from another block resulting in a 4 or 5" discrepancy. The good news is this case had at least two Surveyors testify for the established line.
Dave,
A quick (I may have missed something) read of this case indicates that the original monuments were found and honored over courses and distances. From the case:
"The lines as originally located must govern in such cases. The survey as made in the field, and the lines as actually run on the surface of the earth at the time the blocks were surveyed and the plats filed must control. The parties who own the property have a right to rely upon such lines and monuments. They must when established control courses and distances."
I wonder how acquiescence would be viewed in this particular case had the 5 inch discrepancy not lined up with the originally monumented lines.
Jon Payne, post: 354492, member: 312 wrote: Dave,
A quick (I may have missed something) read of this case indicates that the original monuments were found and honored over courses and distances. From the case:
"The lines as originally located must govern in such cases. The survey as made in the field, and the lines as actually run on the surface of the earth at the time the blocks were surveyed and the plats filed must control. The parties who own the property have a right to rely upon such lines and monuments. They must when established control courses and distances."I wonder how acquiescence would be viewed in this particular case had the 5 inch discrepancy not lined up with the originally monumented lines.
Sorry I was unclear, the Court is talking about acquiescence as evidence of the original line as opposed to acquiescence the doctrine sometimes used in subjective uncertainty cases to uphold a line over the original.
"A line, as shown by monuments and as platted by the city authorities, and as acquiesced in for many years, cannot be overturned by measurements alone." -Kaiser v. Dalto, 140 Cal. 167, 172 (1903)
"after searching for the original stakes and finding none" - yet he still goes ahead with his completely destructive analysis saying everything has to move 4-5'??? Even if he did find them I don't think that's the answer....
Dan Patterson, post: 354499, member: 1179 wrote: "after searching for the original stakes and finding none" - yet he still goes ahead with his completely destructive analysis saying everything has to move 4-5'??? Even if he did find them I don't think that's the answer....
Wouldn't that depend on where he found them?
As Paul suggested, the existing structures are some pretty good evidence of the lines. In a case like this I wonder if the surveyor did not find the original monuments because he only looked in the location he expected (course and distances) to find them.
Town of Red Bluff v. Walbridge, 15 Cal.App. 770 (1911) is a case of the defendant's fence and sheds being 9-1/2' into the public r/w. The defendant made several contentions of fact, one being that a building (demolished before the lawsuit) had been moved to the same line the fence occupied at the direction of the county surveyor. The court ruled the county surveyor did not have authority to give away public r/w, the town was not estopped to claim the true r/w and near the end it seems like the court rejected the defendant's statements of fact. The court did not seem to believe the former building was located where the defendant contended it was.
Fripp v. Walters, 132 Cal.App.4th 656 (2005) stands for the unremarkable proposition that a Parcel Map (minor subdivision in California) approved by the County Surveyor is not an official survey for purposes of its own exterior boundaries. The USGLO surveys are not open to collateral attack in California. The case involves a 1969 Parcel Map which accepted some monuments on an old Deed line which were rejected by a recent Record of Survey. Apparently the line of reasoning pursued by the appellant was that the Parcel Map's external boundary was an official survey not open to collateral attack. That went nowhere, of course. The more correct line of inquiry is did the 1969 PM properly retrace the original boundary of its parent Deed and was the new Survey correct to conclude that it did not. I don't know the answers having not seen the two Surveys.
This has been implied above, but the statement: he surveyor testifies with positiveness and apparently without the least hesitation that ÛÏthe fences and buildings on all the lots are not correctly locatedÛ
If there are a lot of fences all correct in relation to each other, (not to mention the buildings already addressed); wouldn't you tend to consider them perpetuation of the original corners? (especially if they have been "acquiesced to" by all of the neighbors. But not a per se matter of acquiescence, but a land survey matter of best available evidence to the original lot corner locations.
I would tend to want to locate all of the corners from the existing evidence (like fence corners, buildings and other improvements) and run a best-fit mean location of the subdivision/lot corners, and show a statistical evaluation of how these corners all fit to each other within a certain measured deviation from the mean locations. I think this could be strictly addressed from scientific evidence and math prior to bringing in any legal elements of ap, acquiescence or a number of unwritten conveyances. Much better than coming from some theoretical point of beginning monument that may or may not be in the original position of the original monument.
(Sorry if I'm being redundant and repeating other thoughts here, just kind of thinking out loud).
So about what date did California dump its establishment doctrines and rule that paper title controls over reality? When did the deed stakers win the battle? Did California invent the subjective uncertainty test to gut the doctrines or import it from another state?
Dave, giving the benefit of doubt as to whether this is the first time you read -Diehl v. Zanger, 39 Mich. 601, 604 (1878). Heck that case is survey legend!
Unfortunately, it's not all that uncommon for me to see surveyors try to fix things these days. Got involved with a deal just a few years ago where a surveyor was rejecting a whole 1/4 of our town to fit his proportioned 1/4 corner. Said the 140 year old streets where in the wrong place. Street lines going right through 100 year old houses. It's shown on a filed record of survey. The owner that got me involved didn't own half his house. Geez!!! You'd think a red light would come on or something.
LRDay, post: 354518, member: 571 wrote: So about what date did California dump its establishment doctrines and rule that paper title controls over reality? When did the deed stakers win the battle? Did California invent the subjective uncertainty test to gut the doctrines or import it from another state?
Dave, giving the benefit of doubt as to whether this is the first time you read -Diehl v. Zanger, 39 Mich. 601, 604 (1878). Heck that case is survey legend!
Unfortunately, it's not all that uncommon for me to see surveyors try to fix things these days. Got involved with a deal just a few years ago where a surveyor was rejecting a whole 1/4 of our town to fit his proportioned 1/4 corner. Said the 140 year old streets where in the wrong place. Street lines going right through 100 year old houses. It's shown on a filed record of survey. The owner that got me involved didn't own half his house. Geez!!! You'd think a red light would come on or something.
California has not dumped its establishment doctrines but it has tinkered with the circumstances under which they can be applied. California has had more than line of thought on uncertainty since at least 1908, maybe earlier. One line of cases has favored allowing subjective uncertainty and other cases have not. Then there is the disagreement over the required agreement, whether it can be inferred or has to be an actual agreement. Some early authorities imply the agreement is a legal fiction. The feeling was there had to be an agreement so we will say there was.
I see the Courts getting more conservative into the 1920s then getting more liberal in the 1950s. As it stands now we have a compromise, where there is only a fence then there needs to be evidence of an agreement but where there is substantial reliance on an old survey then the agreement can be inferred. The comment about resorting to legal records is not bad advice in many situations. Surveyors being literalists naturally think 200' means 200.0000000000' but recent case law suggests that the Courts are open to accepting a wide range of evidence to find the corner..
The Courts want assistance from experts beyond just rolling the tape out. There is two things, what is the law literally and what is the best course of action in a given case. Our Courts are very open to reasoning which fits the pattern of occupation and use over mere mathematical tinkering from remote locations. Helicoptering in the plat, I call it, imposing a theoretical construction over the obvious and longstanding reality.
I've been aware of Diehl for some time, just never got a copy of it before. I didn't know that Cooley didn't write the main opinion, just the concurring opinion.
Tom Adams, post: 354517, member: 7285 wrote:
I would tend to want to locate all of the corners from the existing evidence (like fence corners, buildings and other improvements) and run a best-fit mean location of the subdivision/lot corners, and show a statistical evaluation of how these corners all fit to each other within a certain measured deviation from the mean locations. I think this could be strictly addressed from scientific evidence and math prior to bringing in any legal elements
I agree. The only potential issue would be then 'losing' 5' of an adjacent roadway. Most places you must maintain the correct width for the road as platted. If it's a matter of inches I think it's one thing. You wouldn't see it. But 5 feet can be seen. Easily
"The only potential issue would be then 'losing' 5' of an adjacent roadway. Most places you must maintain the correct width for the road as platted. If it's a matter of inches I think it's one thing. You wouldn't see it. But 5 feet can be seen."
I disagree. Please re-read the case. The whole point of the case and landmark decision is that the PLATTED DATA/MEASUREMENTS are inferior to the ACTUAL LINES MARKED ON THE GROUND.
"But no law can sanction this course. The surveyor has mistaken entirely the point to which his attention should have been directed. The question is not how an entirely accurate survey would locate these lots, but how the original stakes located them. No rule in real estate law is more inflexible than that monuments control course and distance,--a rule that we have frequent occasion to apply in the case of public surveys, where its propriety, justice and necessity are never questioned. But its application in other cases is quite as proper, and quite as necessary to the protection of substantial rights. The city surveyor should, therefore, have directed his attention to the ascertainment of the actual location of the original landmarks set by Mr. Campau, and if those were discovered they must govern. If they are no longer discoverable, the question is where they were located; and upon that question the best possible evidence is usually to be found in the practical location of the lines, made at a time when the original monuments were presumably in existence and probably well known."
The bolded portion of Cooley's concurring statement is, and has been over-looked by surveyors for apparently a very long time. When re-surveying the PLSS we understand the principle that lines run and marked on the ground control over the platted measurements - why do we have such a hard time, and continually refuse to properly apply the same plain and simple law to non-PLSS lines and corners? Mathematics, measurements, statistics, and other scientific methods/data doesn't change the location of the actual boundaries from where they have been LEGALLY and LAWFULLY established.
I agree that the platted dimensions yield to the original lines as ran.
That is obvious.
The fence lines (assuming they were constructed with reference to the original markings) should be located and used to locate the lots as originally laid out.
I just meant where that particular block 'moves' over from where it was supposed to be, on the side that it moved closer to its neighboring block, it will then take away from the size of the roadway.
Yes if all block corners were originally marked then that would obviously override the platted width of the roadway. Although it would lead to problems if the town/city ever needed to make improvements (sidewalk, etc) and then there was not enough room.
